MOHAMMAD ABDUL KARIM Vs. MOHAMMAD YASIN

JUDGEMENT

(1.) This is a first appeal brought by the plaintiff whose suit has been dismissed by the Court of first instance, the District Judge of Moradabad. The plaintiff sued on the ground that he was in possession of a certificate granted by the Controller of designs, dated August 17,1929, certifying that a design No. 43516 had been registered in respect of the application of such design to trays of brass or other suitable metal under the Indian Patents and Designs Act of 1911. The photograph which is attached shows a large brass tray and the agents for the applicant specified the novelty by stating: "The novelty of the design lies in the grooves along the sides of the tray". The plaint set forth that the defendants had also begun to manufacture big trays of this design and that, the plaintiff had given them a notice but that they paid no heed. Paragraph 5 of the plaint stated: According to the certificate granted by the Controller of Design the plaintiff alone is entitled to manufacture big trays approved of for five years commencing from September 17,1929.

(2.) The plaintiff prayed for the relief of injunction to restrain the defendants from manufacturing and selling big trays of this design and for a sum of Rs. 200 damages. The plaint did not set out under what Act and section it was brought but apparently it was brought under Section 53 of Act II of 1911, the Patents and Designs Act. Learned Counsel argued that the Amending Act of 1930, would apply, but that Act did not come into force until July 1, 1930, under Section 1(2) and the plaint was brought on April 22, 1930. The plaint, therefore, comes under the Act II of 1911, and not under the Amending Act.

(3.) In the written statement it was admitted that the plaintiff had got this design registered and it was claimed that the invention of the plaintiff had no utility, and that it was not a new invention or design at the date of the application for registration. Further that the applicant was not the principal or first inventor of the design and he had knowingly and fraudulently included in the application a design which is at least over 50 years old and which had been publicly manufactured and used and sold in thousands within British India by scores of people. The following two issues were framed: (1) Would the certificate of design be liable to revocation under Section 26, Clauses (I)(a) or (6) or(c)or (e)? (2)To what damages is the plaintiff entitled?